Steve Calabresi
has proposed
that congressional Republicans dramatically expand the federal judiciary to
give President Trump enough appointments to establish conservative majorities
on courts across the country.Linda
Greenhouse questions
both his justifications for so many new judgeships and his assertion that his
proposal is no more partisan than what Democrats have already done.Professor Calabresi also has suggested
including these provisions in reconciliation legislation to avoid filibusters
from Democrats unwilling to give President Trump more vacancies to fill.Whatever the merits of his substantive
proposal, reconciliation is not a viable route to accomplish it.

Before getting
into the specific rules that rule out this plan, some historical context will
show that these rules are not accidents and that including legislation of this
sort in a reconciliation bill would be profoundly destructive to the Senate’s
role in our system.Although
reconciliation procedures were first established in the Congressional Budget
Act of 1974, few realized their potential until Ronald Reagan took office in
1981.With Democrats still in nominal
control of the House and only a few votes down in the Senate, reconciliation
procedures for limiting amendments and overcoming filibusters were the only way
President Reagan could possibly have enacted his program of sharp reductions in
domestic programs.

Not expecting to
get a second bight at the apple, the Administration and its congressional
allies tossed as much of their wish-list as they had ready into the Omnibus
Budget Reconciliation Act of 1981 as it steamrolled through Congress (becoming
Public Law No. 97-35).Not only did OBRA
cut welfare, food stamps, and a host of other anti-poverty programs, it also
restructured many programs in ways that did not save money but better-served
the Reagan agenda or obscured the impacts of cuts.

Although the
President’s popularity made OBRA unstoppable, Senate traditionalists on both
sides of the aisle were alarmed that reconciliation had the potential to make
the filibuster effectively meaningless.Accordingly, they amended the Congressional Budget Act to strictly limit
what provisions could appear in reconciliation bills.Perhaps the imperative of deficit reduction
required allowing inherently unpopular spending cuts and tax increases to pass
with simple majorities, but other policy-making should have to go through the
regular order, subject to amendment and filibuster.This set of limits, found largely at 2
U.S.C. § 644, came to be known as the Byrd Rule.Should a point of order be raised against a
provision of a reconciliation bill under these and related restrictions, sixty
votes – the same number required to invoke cloture against a filibuster – are
required to waive that objection.Thus,
including extraneous material in a reconciliation bill generally offers
proponents little advantage:if they
could overcome a point of order, they could have passed the legislation as a
freestanding bill.

Using
reconciliation to expand the federal judiciary would be problematic for several
reasons.First, reconciliation
protections are available only for legislation reported out of committees in
response to “reconciliation instructions” included in a congressional budget
resolution approved under 2
U.S.C. §§ 632(b)(2) and 641(a)(1).
The fiscal year 2018 budget resolution that
is protecting the pending tax legislation contains reconciliation instructions
for only two sets of committees:the
tax-writing committees (House Ways and Means and Senate Finance) and the
committees with jurisdiction to allow drilling in the Arctic National Wildlife
Refuge.Legislation creating new federal
judgeships would fall within the jurisdiction of the Judiciary Committees,
which do not have reconciliation instructions and hence, under 2 U.S.C. §
641(b)(2), may not participate in this year’s reconciliation process.Unless congressional Republicans wanted to
put their tax legislation on hold while they passed a new version of the budget
resolution, they could not include material within the judiciary committees’
jurisdiction in the pending legislation.With their tax legislation getting more unpopular with each passing day,
that seems unlikely.

Second, only
changes in revenues and in “direct spending” count as fiscal changes permitted
in reconciliation legislation under 2 U.S.C. § 641(b)(2).Although judges (and clerks and courthouses)
obviously cost money, authorizing more of them does not meet the narrow definition
of direct spending in 2 U.S.C. § 900(c)(8).Most federal spending programs are categorized as “discretionary”
because they require two distinct steps:the “authorization” or establishment of a program and the appropriation
of funds for it.Thus, legislation expanding
or reducing the goals of a program does not necessarily increase or decrease
federal spending because appropriators could choose not to increase
funding.Congressional budget process
law controls discretionary spending not through reconciliation legislation but
through annual caps on appropriations under 2
U.S.C. § 901(c).As long as those
caps remain in place, authorizing more judgeships might increase spending on
the judiciary, but it would not increase total federal spending because
appropriators would be required to offset that spending with cuts in other
non-defense activities or trigger across-the-board cuts through a new
sequestration.Therefore, legislation
expanding the federal judiciary would be deemed extraneous under the Byrd Rule,
specifically 2 U.S.C. § 644(b)(1)(A)’s prohibition on provisions “not produc[ing]
a change in outlays or revenues”.

Finally, even if expanding the judiciary had a
direct, cognizable effect on federal spending, the Byrd Rule also prohibits provisions
that “produce[] changes in outlays or revenues which are merely incidental to
the non-budgetary components of the provision”.2 U.S.C. § 644(b)(1)(D).As Professor
Calabresi’s own writings demonstrate, the overwhelming purpose of this proposal
is to establish conservative control of the federal judiciary, not to increase
federal spending on courts.Therefore, a
merely incidental fiscal impact would not suffice to allow it to move on
reconciliation legislation.

This sort of
non-fiscal power grab is precisely what prompted the enactment of the Byrd Rule
in the first place.And with Senate seats
closely divided – and with most current Republican senators having experienced the
challenges of serving in the minority before 2014 – I suspect that even many
senators sympathetic with Professor Calabresi’s proposal on the merits would be
leery of creating a precedent that would so powerfully disempower them should
they lose their majority in 2018 or 2020.